How the Chicago School Overshot the Mark: The Effect of Conservative Economic Analysis on U.S. Antitrust

Robert Pitofsky

Abstract

This book came about due to the growing concern that antitrust, a system of regulation that for over a century has had wide professional and public support, is under attack. The recent trend appears to be toward more limited interpretation of doctrine (especially in the Supreme Court) and less aggressive federal enforcement. Part of the reason for the decline in enforcement is that for almost fifty years extremely conservative economic analysis (sometimes referred to as “Chicago School”) has dominated scholarship in the area. With the exceptionally liberal “Warren Court” as their target, two b ... More

This book came about due to the growing concern that antitrust, a system of regulation that for over a century has had wide professional and public support, is under attack. The recent trend appears to be toward more limited interpretation of doctrine (especially in the Supreme Court) and less aggressive federal enforcement. Part of the reason for the decline in enforcement is that for almost fifty years extremely conservative economic analysis (sometimes referred to as “Chicago School”) has dominated scholarship in the area. With the exceptionally liberal “Warren Court” as their target, two brilliant academics, Richard Posner and Robert Bork, led a small army of academics in devastating criticism of the output of the Warren Court. Those in favor of the Chicago School's limited and strictly economic approach were handed an enormous political boost when President Ronald Reagan announced that “government was the problem and not the solution.” Contributing towards this collection of chapters are Republicans and Democrats, lawyers and scholars left of center and right of center, one-time antitrust enforcers, and private sector representatives. Virtually all share the view that antitrust is better today, more rigorous, more reasonable, more sophisticated in terms of economics, than it was forty or fifty years ago. But virtually all also confess to a sense of unease about the current direction of antitrust interpretation and enforcement. Specific concerns include current preferences for economic models over facts, the tendency to assume that the free market will cure all market imperfections, the belief that only efficiency matters, and outright mistakes in matters of doctrine.

Jonathan B. Baker, and Carl Shapiro

End Matter

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy).date: 19 March 2018